Pakenham Walsh, J.
1. The Petitioner and others were accused before the Village Panchayat Court, Narayanamangalam, Tanjore District, and convicted of an offence. A revision petition was filed in the Court of the Joint Meagistrate, Negapatam, in CM.P. No. 43 of 1932, under Section 76 (8) of the Madras Village Courts Act. The Court found that the Bench had no legal existence at the time and hence no jurisdiction. It set aside the conviction and directed the fines paid to be refunded. On the same facts an identical complaint was filed before the same Panchayat Court in C.C. No. 2 of 1932. The Petitioner put in a petition to the Sub-Magistrate, Kodavasal, to stop further proceedings and discharge the accused on the ground that Section 403, Criminal Procedure Code barred a new trial on the Isame facts with regard to the same occurrence.
2. The Court held there was no bar and against this order the present Revision Petition is filed. The argument for the Petitioner is that under Section 423(b). Criminal Procedure Code, if a Court does not order a re-trial it amounts to an acquittal. The learned Advocate for the Petitioner admits that the Appellate sections of the Code are not applicable to proceedings under the Panchayat Courts Act the only section of the Criminal Procedure Code that is made applicable being Section 403 and that the order of the Joint Magistrate must be held to have been under the powers of revision conferred by Section 76 (8) of the Village Courts Act. But he argues that a revisional jurisdiction is in its essence appellate and quotes Chappan v. Moidin Kutti I.L.R. (1898) Mad. 68 : 8 M.L.J. 231 (this case was with reference to Section 662 of the Civil Procedure Code of 1882 corresponding to Section 115 of the Civil Procedure Code of 1908). He also quotes In the matter of the Petition of Dijahur Dutt I.L.R. (1879) 4 Cal. 647, where it was held that a Magistrate had no power to remand a criminal case to a subordinate Magistrate for retrial after the case has once been dismissed. He also quotes a recent decision by Burn, J. in Chinna Similan v. Peria Similan (1933) M.W.N. 224 that in the case of an appeal from an order of acquittal or conviction the appellate Court has no jurisdiction to order a de novo trial but can only alter or reverse such order and direct the trial Magistrate to write a proper judgment. That case appears to me to have no relevancy whatsoever, because the present is a case of setting aside a conviction and the Petitioner's own argument is that though the appellate sections of the Code are not applicable the revisional power is the same as the appellate power and if so, clearly the Joint Magistrate had power on Petitioner's own argument to order a re-trial if he had wished to do so.
3. For the Crown it is argued that the original trial was a nullity having been held by persons who had no power to do so and fell under Section 530(p), Criminal Procedure Code. Therefore the Joint Magistrate had no power to order a re-trial there having been no trial. For this position there is the direct authority of Abdul Ghani v. Emperor I.L.R.(1902) Cal. 412 and Liakat Hossain v. The Emperor 12 C.W.N. 246. In the first of these cases it was held that where a Magistrate who had no jurisdiction for an offence triable exclusively by Sessions and where the Sessions Judge, on appeal had merely discharged the accused, there was nothing in law to prevent a Court of competent jurisdiction from instituting fresh proceedings against the accused and committing him. It was further held that inasmuch as Section 423, Criminal Procedure Code, contemplates an order for a re-trial by a Court of competent jurisdiction, and the trial had been set aside owing to the Magistrate having had no jurisdiction to hold it, no trial had in fact taken place, so that the Sessions Judge could not possibly have ordered a re-trial.
4. In the second case it was held that it is not necessarily the duty of the High Court to order a re-trial of a person whose conviction is set aside on account of an illegality in his trial and that when the conviction and sentence passed upon an accused is set aside by the High Court on the ground that the Magistrate who tried the accused had no jurisdiction to do so, the order of the High Court setting aside the conviction and sentence is no obstacle to the accused being re-tried on the same charge at the instance of the prosecution. These cases are exactly in point and no authority contra has been quoted to me.
5. As the petition must fail on this ground I will only just mention two other arguments raised for the Crown.
6. The first was that in any case the revisional jurisdiction given to the Joint Magistrate under Section 76(8) of the Act is no greater than that which he has under Section 439, Criminal Procedure Code, and that as the latter section does not empower him to order re-trial he could not in any case have done so. But Section 76(8) clearly gives him a power of setting aside an order of conviction which he has not got under Section 439 of the Criminal Procedure Code, so that it cannot be argued that he has not got the further power, incidental to that, of ordering a re-trial. The other argument was that he had not even the power to set aside the conviction because want of jurisdiction does not fall among the reasons mentioned in Section 76(8) of the Act justifying his interference. ' Want of jurisdiction ' is certainly in my opinion legal 'misconduct ' within the meaning of the section.
7. The petition must be dismissed.